Fifth Circuit takes up Southwest Airlines union busting claims

NEW ORLEANS (CN)— The Southwest Airlines Pilots Association argued to the Fifth Circuit Tuesday that Southwest Airlines pilots who are affiliated with the union have been unfairly disciplined and denied promotions.

Throughout Tuesday’s oral argument, the three-judge panel appeared to side with the plaintiff — a union formed in 1978 and endorsed by the one-time owner of Southwest Airlines on behalf of the company’s pilots — over the disciplinary actions taken against Captain Timothy Roebling.

Roebling was disciplined in 2022, ostensibly for using the word “vagina” in a text message thread that included roughly 20 Southwest Airline employees who were making jokes about a pair of shoes, but according to the union, he was being punished for his association with the union.

“You have to look at this event over a series of years,” Attorney Joseph Gillespie, representing the association, told the judges Tuesday.

“So, within this text thread, other pilots who were not union pilots were not disciplined,” Gillespie added. “Other pilots also referred to genitalia and were not disciplined.” He said this fact elevates the relevancy of this case.

The attorney said that in denying promotions to Roebling, Southwest Airlines' management was sending a signal to other pilots, letting them know that supporting the union would jeopardize their careers.

Even though Roebling had already stepped down from his leadership role with the association by the time he was formally disciplined for the crude remark on the text chain and denied a promotion, Gillespie said the action was still inextricably linked to Roebling’s affiliation with the organization.

U.S. Circuit Judge Jennifer Walker Elrod, an appointee of George W. Bush, seemed to agree with Gillespie that it was about the “the whole context, the totality of the circumstances,” she said.

But Robert Sheeder, who appeared on behalf of the airline, argued that Southwest is very concerned about its employees being fairly treated and that’s why the airline created the union to begin with.

Sheeder said the airline offered to “expedite” this issue but the union refused.  

“And that claim is sitting there today, and it should be noted that they never moved for injunctive relief after pleading for injunctive relief,” Sheeder told the judges.

“You’re saying there is something nefarious about hedging your bets?” Elrod asked Sheeder.

Sheeder laughed, but Elrod said she was being serious.

Sheeder replied that in finding against the association's claims in 2021, Senior U.S. District Judge Barbara Lynn of the Northern District of Texas correctly relied upon a provision in the pilots' employment contract that established all pilots are covered under the protection of the union.

“That’s all good and fine, but we hear them saying you can’t join a union,” U.S. Circuit Judge Cory Wilson, an appointee of Donald Trump, said. “You can’t penalize someone for joining a union, can you?”

Soon after, Wilson added that the situation with Roebling appears to be quintessential.

“If that’s not an example of anti-union animus, what is?” Wilson asked.

Sheeder replied that the anti-union “whispering campaign” that workers at the airline have complained about is not attributable to Southwest.

“There is no evidence that the airline was involved when Roebling was disciplined,” Sheeder said.

Citing back to Lynn's lower court ruling, Sheeder argued the action at issue "has to be something that destroys the collective bargaining relationship,”

Wilson appeared unconvinced.

“What do you say to the argument that other pilots who were not in the union were not disciplined?" he asked.

Sheeder didn’t directly reply, but when pressed further on the topic later, he said this wasn’t the first time Roebling’s behavior needed to be reigned in, citing an instance during the height of the pandemic when Roebling caroused in a crowded bar, and another time when Sheeder said Roebling used foul language while referring to a female employee.

Elrod and Wilson were joined on the panel by U.S. Circuit Judge Jacques Weiner, an appointee of H.W. Bush. The judges did not indicate when or how they will decide.

Follow @SabrinaCanfiel2

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